1999 PLP 666 (YLR)

Briefly stated the facts are that Mst. Sahib Khatoon and Mst. Shafia filed an application under section 25 of the Guardian and Wards Act for the custody of Mst. Tasmia Bibi against public‑at‑large and Shaukat Hayat. They also moved an application under section 12 of the said Act for temporary custody of said minor. During the pendency of that application on 1‑4‑1997 Mr. Zulfikar Khan Nasir, Civil Judge Ist Class, Alipur, ordered that minor be handed over to her mother Mst. Shafia. As the minor was with her father Shaukat Hayat (petitioner), so he ordered that warrant under section 100, Cr.P.C. be issued for the execution of that order. The petitioner moved an application for setting aside the said order dated 1‑4‑1997, upon which, operation of order, dated 1‑4‑1997, was suspended. However, the said application for setting aside order dated 1‑4‑1997 was finally dismissed vide order dated 19‑9‑1997. An appeal filed against order dated 19‑9‑1997 also met the same fate at the hands of the learned Additional District Judge Alipur vide order, dated 29‑10‑1997. Both the said orders have been sought to be declared illegal and void vide this writ petition.

2. Arguments have been heard and record perused.

3. It is stated by learned counsel for the petitioner that both the Courts below have no jurisdiction to pass the impugned orders dated 1‑4‑1997 and 19‑9‑1997. To substantiate his contentions he referred to section 4‑A of the Guardian and Wards Act, which lays down that an application under the said Act can only be entertained by the Senior Civil Judge or by a Civil Judge 1st Class at the headquarter duly authorised by the District Judge, that admittedly order dated 1‑4‑1997 was passed by Civil Judge 1st Class but not duly authorised by the learned District Judge. Thus order, dated 1‑4‑1997 passed by Civil Judge Ist Class Alipur does not fulfil the conditions prescribed by section 4‑A (ibid). He next urged that subsequent order, dated 19‑9‑1997 was passed by Civil Judge Second Class Alipur who in no way was competent to pass the said order. He, thus, argued that as orders dated 1‑4‑1997 and 19‑9‑1997 have been passed by officers who were not competent to pass the said orders, so the said orders are coram non judice. He canvassed that initially the petition was filed by Mst. Sahib Khatoon and Mst. Shafia Bibi and vide order, dated 1‑4‑1997 temporary custody of the minor was ordered to be handed over to her mother Mst. Shafia. He next argued that after the death of Mst. Shafia, the trial Court ordered orally that minor be handed over to her maternal grandmother Mst. Sahib Khatoon. That as father of the minor was alive, so her temporary custody could not be handed over to her maternal grandmother as laid down in section 19 of the Act (ibid). He, thus, submitted that looking from any angle, both the orders are coram non judice, as such writ petition be accepted and the said orders be declared null and void.

4. Admittedly, the minor is daughter of Mst. Shafia out of her wedlock with Shaukat Hayat petitioner. She alongwith her mother (maternal grandmother of minor) filed an application for the custody of her daughter. They also applied for temporary custody under section 12 of the Act. Vide order dated 1‑4‑1997, her temporary custody was ordered to be given to her mother after taking the same from the present petitioner. It is also fact that before the said order dated 1‑4‑1997 could be executed, Mst. Shafia mother of the minor died and without passing any order in writing the trial Court directed that her custody be given to her maternal grandmother. Now in the presence of father, custody of the minor could not be ordered to be given to Mst. Sahib Khatoon, who is maternal grandmother of the minor. No such order even otherwise is available on record. On this short ground, the impugned orders are not sustainable in the eyes of law. Even otherwise it is admitted fact that initial order dated 1‑4‑1997 was passed by the Civil Judge 1st Class Alipur whereas order dated 19‑9‑1997 was passed by Civil Judge Second Class Alipur. According to section 4‑A of the Guardian and Wards Act, both the Civil Judges were not authorised/competent to pass the said orders as an application under Guardian and Wards Act can only be entertained by a Senior Civil Judge of the District or by a Civil Judge 1st Class at the; headquarters duly authorised by the District Judge as required by section 4‑A of the said Act, as held in Muhammad Hayat v. Additional District Judge Ist, Okara and 2 others (PLD 1990 Lahore 350), Mst. Tehmina Khan v. Muhammad Jehanzeb Khan Bharwana (PLD 1997 Lahore 541) and Muhammad Hayat v. Additional District Judge, Okara and 2 others (1990 MLD 1815). Thus both the learned Civil Judges were not competent to entertain the petition, what to speak of passing the impugned orders.

5. In the light of facts stated above, the writ petition is accepted, orders dated 1‑4‑1997, 29‑7‑1997, 13‑9‑1997, 19‑9‑1997 and 29‑10‑1997 are hereby set aside. Consequently, the petition filed for the custody of minor Mst. Tasmia fails and is hereby dismissed. However, respondent No. l is not precluded from seeking her custody in accordance with law. Q.M.H./M.A.K./S‑343/L Petition allowed.